United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge.
matter is before the Court on Defendants' Averett
University of Danville, Virginia, Leslie Villarose, and
Tiffany McKillip Franks' (“Defendants”)
Motion to Dismiss, pursuant to Federal Rule of Procedure
12(b)(6), for failure to state a claim [ECF No. 5]. Having
fully considered the evidence, the record, and the argument
of the parties, I will grant Defendants' Motion to
STATEMENT OF FACTS AND PROCEDURAL
is a resident of North Carolina. Defendant Averett University
(“Averett” or “the University”),
located in Danville, Virginia, is a private university.
Defendant Leslie Villarosa is Dean of Students at Averett,
and Defendant Tiffany McKillip Franks is Averett's
began his education at Averett in August of 2018. (Comp.
¶ 7.) Upon his enrollment, he was provided a copy of
Averett's Student Handbook,  which describes the rights
and responsibilities of the students and the acceptable
standards of conduct. (Comp. ¶ 10.) It also provides the
procedures for investigation of violations of the student
code of conduct, adjudication of allegations of wrongdoing,
and appeals of adverse findings.
enrolled at Averett, Plaintiff was a member of Averett
University's men's baseball team. (Comp. ¶ 13.)
Although alcohol consumption by minors is illegal, Plaintiff
alleges the basketball coach told players, “[D]rink
whatever you want. As long as I don't get a call from the
police, I'm fine.” (Id. ¶ 15.)
alleges he was hazed and harassed by several of his teammates
via text, specifically, by an upper classman named Adam
George. (Id. ¶ 20.) On October 10,
2018, Plaintiff approached Adam to discuss their differences.
(Id. ¶ 21.) Plaintiff alleges Adam was
inebriated. (Id. ¶ 22.) A physical altercation
ensued, and Adam left the scene-drunk-and ultimately crashed
the vehicle he was driving. (Id.) The University
interviewed Plaintiff, Adam, and several witnesses. Plaintiff
asserts the witnesses corroborated his claim that he had been
taunted via text, and one witness even confirmed that Adam
threw the first punch. (Id. ¶ 28.)
October 19, 2018, Plaintiff received an email stating he had
accepted responsibility and would be suspended for the
remainder of the academic year. (Id. ¶ 38.)
Plaintiff alleges the University diverted from its own
policies regarding fights by suspending Plaintiff; according
to Plaintiff, the Handbook mandates 10 Community Service
hours for a first offense of fighting. (Id. ¶
35; Handbook pg. 68.) Plaintiff alleges his teammate did not
receive the same punishment for the altercation; Adam, who
Plaintiff contends was a more valued athlete, was given a
much less serious sanction. (Id. ¶ 40.)
Plaintiff contends he was not provided with a written finding
of facts, a written notification of his appeal rights, or a
contact to make an appeal. (Id. ¶ 42.)
February 2, 2019, Plaintiff Nicholas George filed a Complaint
against Defendants Averett University, Leslie Villarosa, and
Tiffany McKillip Franks. Plaintiff brought four counts
against Defendants: “Count I-first violation of
university policies and procedures-failure to base decision
on preponderance of the evidence” (id.
¶¶ 54-68; “Count II-second violation of
university policies and procedures-defendants did not provide
Plaintiff with written notification of appeal rights”
(id. ¶¶ 69-81); “Count III-failure
to supervise student behavior” (id.
¶¶ 82-93); and “Count IV-negligence”
(id. ¶¶ 94-105). In March of 2019,
Defendants filed a Motion to Dismiss for failure to state a
claim. [ECF No. 5.] Plaintiff and Defendants appeared before
the Court on May 24, 2019, to present their arguments.
reviewing the evidence, the record, and the argument of the
parties, this matter is ripe for disposition.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. In determining facial plausibility, the court
must accept all factual allegations in the complaint as true.
Id. The Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the
speculative level . . .” Twombly, 550 U.S. at
555 (internal quotation marks omitted). Therefore, the
Complaint must “allege facts sufficient to state all
the elements of [the] claim.” Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
has brought four counts against Defendants, and Defendants
moved to dismiss all four counts. ...